Claimant moves for permission to file a late claim pursuant to Court of Claims
Act (hereinafter "CCA") 10 (6).

The Court has considered the following papers in connection with this
motion:

Notice of Motion No. M-62579, dated and filed October 12, 2000.

Affidavit of Theresa N. McCorry, Esq., in support of motion, sworn to October
12, 2000, with attached exhibits.

Proposed Amended Claim, dated October 12, 2000.

Memorandum of Law, in support of motion, dated October 12, 2000.

Affirmation of John J. Nowak, AAG, in opposition to motion, dated October 30,
2000, and filed November 13, 2000, with attached exhibits.

The proposed claim is a subrogation claim for property damage in the amount of
$40,064.17 arising out of an accident between two trucks which occurred on State
Route 17 westbound, 1.5 miles east of Exit 67 in the Town of Union, at
approximately 11:00 a.m. on October 15, 1997. Rockton Transport, o/b Rockton
Leasing, Ltd., (hereinafter "Rockton") owned a tractor trailer being operated by
its employee, James A. Butler. The Rockton vehicle was traveling behind a John
Deere front end loader owned by the State of New York (hereinafter "State") and
operated by its employee, William R. Schubmehl. The parties disagree as to the
underlying facts, but agree that the Rockton-Butler vehicle hit the rear of the
State-Schubmehl vehicle resulting in damage to both vehicles. (Proposed
Verified Claim, ¶ 13). While the State's claim against Rockton is being
pursued in supreme court, Rockton seeks to recover for its own property damages
in this forum.[1]

As a threshold issue, the Court notes that it has jurisdiction to review and
determine this motion since it was filed within three years from the date this
claim accrued. (CPLR 214).

The factors that the Court must consider in determining a properly framed CCA
10 (6) motion are whether:

1. the delay in filing the claim was excusable,

2. the State had notice of the essential facts constituting the claim,

3. the State had an opportunity to investigate the circumstances underlying the
claim,

4. the claim appears to be meritorious,

5. the failure to file or serve upon the attorney general a timely claim or to
serve upon the attorney general a notice of intention resulted in substantial
prejudice to the State, and

6. there is any other available remedy.

Claimant offers no reason for its nearly three-year delay in requesting
permission to file a late claim. This factor weighs against Claimant.

Notice of the essential facts, opportunity to investigate and lack of
substantial prejudice comprise the next three factors and may be considered
together since they involve analogous considerations. Claimant contends the
State obtained actual knowledge of the essential facts from two sources: (1) the
direct involvement of a State employee in the accident; and (2) numerous
correspondence exchanged between the parties after the accident. It is
well-settled that direct involvement of a State employee in an accident does
not, standing alone, qualify as notice when "[t]he claimed knowledge is that of
the alleged tortfeasor, and not that of a person possessing the supervisory
authority to initiate an investigation into the claim [citations omitted]."
(Witko v State of New York, 212 AD2d 889, 890; Avila v State of New
York, 131 Misc 2d 449, 450). There is no allegation Mr. Schubmehl possessed
such authority. However, Claimant also submits various letters exchanged
between the parties following this accident.[2]
A letter dated November 26, 1997, sent from a Rockton investigator to the
State's "Transportation Maintenance" advised that Rockton is "[h]olding the New
York State Department of Transportation liable for this incident...."
(Affidavit of Theresa N. McCorry, Esq., Exhibit C). A letter dated December 2,
1997 from the Claims Administrator of the State Office of General Services
indicated that the "claim" was being forwarded to "DOT headquarters claim unit
for a response and further handling." (Affidavit of Theresa N. McCorry, Esq.,
Exhibit C). Finally, a letter dated December 11, 1997 to the Department of
Transportation refers to a telephone conversation of December 2, 1997 confirming
the State's representation that it was in the process of "[e]ndeavouring
[sic] to contact [Mr. Schubmehl] to obtain his statement to confirm the
details of the loss." (Affidavit of Theresa N. McCorry, Esq., Exhibit C).

Consequently, the direct involvement of a State employee, together with these
correspondences is overwhelming evidence that the State had actual notice of
this accident at a supervisory level and an opportunity to investigate within 90
days following the accident. (Wolf v State of New York, 140 AD2d 692).
Moreover, the State has not demonstrated prejudice due to the delay in filing by
arguing that it cannot now prepare and proceed to trial, nor does it argue that
the delay in filing has generated an unfair advantage to the Claimant. As such,
the Court finds these three factors weigh in Claimant's favor.

Whether the proposed claim appears meritorious has been characterized as the
most decisive component in determining a motion under CCA 10 (6), since it would
be futile to permit a meritless claim to proceed. (Matter of Santana v New
York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a
meritorious claim, Claimant must show that the proposed claim is not patently
groundless, frivolous, or legally defective and that there is reasonable cause
to believe a valid claim exists. (Matter of Santana v New York State Thruway
Auth., supra, at 11). While this standard clearly places a heavier
burden on a party who fails to comply with the statutory requirements, it does
not require a claimant to overcome all objections nor does it suggest that the
Court should engage in the kind of fact-finding that would ultimately be
necessary to adjudicate the actual merits of the case. (Matter of Santana v
New York State Thruway Auth., supra, at 11-12). The State objects to
Claimant's failure to submit a supporting affidavit from Mr. Schubmehl and
argues that any factual allegations asserted by counsel are without foundation
in the record. By the same token, however, the State has failed to submit an
affidavit from anyone with first hand knowledge of the accident. Thus, the
Court is left with dueling attorney affirmations, a police report, photographs,
and partial discovery from the pending supreme court action. From this record,
the only conclusion this Court can draw for certain is that the parties have
sharply divergent views as to the cause of this accident and the interpretation
of the evidence. All these factual disputes including, among other things, the
speed of the vehicles; whether the State-Schubmehl vehicle was traveling in the
driving lane or on the shoulder; the adequacy of warning lights and/or signs;
the condition of the roadway are the very factual determinations best left for a
trial. In short, if Claimant's version of the facts is true then a valid cause
of action exists. The Court finds that Claimant has established the proposed
claim appears meritorious within the meaning of CCA 10 (6). (Marcus v State
of New York, 172 AD2d 724).

Finally, the Court agrees that there is no alternative remedy available to
Claimant. This factor weighs in Claimant's favor.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the
Court finds that five of the six factors, including the all-important factor of
merit, weigh in Claimant's favor.

Accordingly, for the reasons stated above, IT IS ORDERED, that Claimant's
Motion No. M-62579 for permission to permit the late filing and service of a
claim is GRANTED. Claimant shall file a claim and serve a copy of the claim
upon the attorney general within sixty (60) days from the date of filing of this
Order in the Chief Clerk's Office of this Court. The service and filing of the
claim shall be in conformity with all applicable statutes and rules of the
Court.

The State commenced an action against Rockton to recover for the property damage
to its own vehicle. (State of New York v James A. Butler, and Rockton
Transport, o/b Rockton Leasing, Ltd., Index No. L-00036-00; [Albany
County]).

Initially, the Court notes it is only concerned with the letters dated November
26, 1997; December 2, 1997; December 11, 1997 that fall within the initial 90
day statutory period following the accident. (Matter of Crawford v. City
Univ. of N.Y., 131 Misc 2d 1013, 1016). As such, any subsequent letters and
the State's commencement of a claim in early 2000 do not relate to the issue of
notice during the appropriate time period.